Forcing people to be sterilised to change gender is unlawful, Japan’s Supreme Court rules

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Tokyo: Japan’s Supreme Court has ruled that a law obliging transgender people to undergo sterilisation surgery to officially change their gender is “cruel” and unconstitutional.

The 2003 law requiring the removal of sex organs to obtain a state-recognised gender change has long been criticised by international rights and medical groups as discriminatory as well as invasive and risky for health.

On Wednesday, the court’s 15-judge “grand bench” agreed, ruling against the “cruel choice” between “embracing the sterilisation surgery that requires an intense level of bodily invasion” and “relinquishing important legal benefits of being treated according to their gender identity”.

Lawyers Kazuyuki Minami, left, and Masafumi Yoshida hold signs that read “Unconstitutional”, right, and “Back (to High Court)” during a press conference following the ruling on Wednesday.Credit: AP

However, the decision was not a full legal victory for those wishing to change gender, as the Supreme Court sent the case back to a lower court to deliberate the requirement for gender-affirmation surgery.

Several other conditions for official recognition of changed gender still remain, including being unmarried, not having children and being diagnosed with gender dysphoria.

Amnesty International called the ruling a “landmark decision for transgender rights in Japan”, adding that it was a further “encouraging sign that countries in the region are re-evaluating discriminatory practices or laws affecting LGBTI people”.

Hong Kong this week ruled in favour of same-sex couples’ equal inheritance rights, while in May, Taiwan passed a bill that granted same-sex partners the right to jointly adopt a child neither of them are related to, taking one of the final steps towards achieving full marriage equality.

However, Boram Jang, Amnesty’s East Asia researcher, said that while the ruling was an important step forward, the fight for LGBT rights in Japan remained an uphill battle.

‘Individual’s self-determination’

“Amnesty International continues to call on the Japanese authorities to ensure legal gender recognition is not contingent on psychiatric diagnosis, medical treatment such as gender-affirming surgery or other abusive or discriminatory requirements such as being unmarried or not having children,” she said.

“It must be a quick, accessible and transparent administrative process based on an individual’s self-determination.”

Wednesday’s case was triggered by a transgender woman who wanted to challenge a refusal to list her as female without surgery.

She filed the case in 2020 after her request for a gender change in her family registry – to female from assigned male at birth – was turned down by lower courts.

‘Grave human rights violation’

The claimant, identified only as a resident of western Japan in her late forties, has called the forced sterilisation a “grave human rights violation and unconstitutional”, pointing out that it creates a huge economic and physical burden on individuals.

Kazuyuki Minami, her lawyer, told reporters that it was “extremely rare for the Supreme Court to rule a law unconstitutional”.

But he added that it was “sad” that his client “will have to live tomorrow and beyond with her gender not recognised by the law” as the further review at the lower court would delay the final settlement of the issue.

The decision comes at a time when the rights of the LGBT community are rising in visibility in traditionally conservative Japan, which remains the only G7 member that does not allow same-sex marriage or legal protections, including an effective anti-discrimination law.

In July, the Supreme Court ruled in favour of a transgender bureaucrat who sued the government over access to female lavatories at work, and opinion polls have shown growing support for LGBT-friendly laws, especially among the younger generation.

The Telegraph, London

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